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TMI Blog2017 (11) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods cannot be allowed to be deteriorated in quality till the final out-come of the dispute. Inasmuch as the machines imported by the appellant were required in the assessee s factory, the same were cleared by them on payment of the duty on enhanced value and this fact by itself cannot be adopted as a ground for resolving the disputed issue of valuation. As regards the valuation issue, we note that the same has been enhanced at the time of assessing bills of entries itself on the basis of the opinion of Chartered Engineer. On going through the said opinion, we note that he has not given the value of old and used machine but has only indicated the value of the new machines that too without any basis. Revenue has not adduced any evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue obtained the opinion of one Chartered Engineer and loaded the value by relying upon his opinion. The appellant paid the duty on the enhanced value and cleared the goods. 3. Subsequently, they filed appeal against the said assessed bills of entries before Commissioner (Appeals). It was contended by the appellant that the said enhancement of the assessable value was in gross violation of principles of natural justice, inasmuch as they were not given any opportunity to put-forth their case. The enhancement was done without first rejecting the transaction value inasmuch as, there is nothing on record to suggest that the transaction value was not the correct assessable value. No reasons stand recorded by the authorities below for suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to enhance the value, he observed that even the appellant could have asked for the grounds for doubting the truth and accuracy of the value declared by them. As they have not asked for such reasons, the Revenue was justified in not passing a speaking order. He also observed that inasmuch as, the appellant had paid duty on the higher assessable value and have cleared the goods, they cannot be now held to be aggrieved with the same and challenge the same before the higher authorities. 5. After hearing both sides and after going through the impugned order of Commissioner (Appeals), we find that he has mainly rejected the appeal on the sole ground that appellant have accepted the enhanced value and has cleared the goods by paying duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Commissioner of Customs vs. Ganesh Trading Company 2013 (297) ELT 75 (Tri. Del.). Similarly, in the case of Bayshore Glass Trading Pvt. Limited vs. CC, Kolkata 2002 (148) ELT 1243 (Tri. Kolkata), it was observed that rejection of appeal by Commissioner (Appeals) on the ground that the assessee cleared the goods on payment of duty as assessed without protest, cannot be appreciated. Filing of appeal by itself is a protest. 6. As regards the valuation issue, we note that the same has been enhanced at the time of assessing bills of entries itself on the basis of the opinion of Chartered Engineer. On going through the said opinion, we note that he has not given the value of old and used machine but has only indicated the value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the same cannot be relied upon for rejecting the declared transaction value of old/ used goods and there being no evidence of contemporaneous import of identical goods imported from same suppliers at higher price and the importer having paid any amount over and above the declared invoice value to foreign suppliers and in the absence of any allegation that importer and foreign were related parties, the enhancement was held as bad in law. It is seen that initially there was difference of opinion between the two Members and on reference to third Member, the said declaration of law was made by the majority order. 7. Apart from the foregoing, we also note that Revenue has not adduced any evidence to show flow of any under hand consid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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